Citation Nr: 0945541
Decision Date: 12/01/09 Archive Date: 12/08/09
DOCKET NO. 06-18 343 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUES
1. Entitlement to a rating in excess of 10 percent for post
traumatic stress disorder (PTSD), prior to January 2, 2004.
2. Entitlement to a rating in excess of 50 percent for PTSD,
effective from January 2, 2004.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
D. M. Casula, Counsel
INTRODUCTION
The Veteran had active service from October 1968 to June
1970.
This matter comes before the Board of Veterans' Appeals
(Board) from a July 2005 rating decision of the above
Regional Office (RO) of the Department of Veterans Affairs
(VA) which found that a clear and unmistakable error (CUE)
had been committed in failing to restore the 10 percent
rating previously established for the service-connected PTSD,
effective June 1, 1993, and which increased the evaluation of
PTSD which had been corrected to 10 percent, to 50 percent,
effective January 2, 2004. In September 2009, the Veteran
testified at a videoconference hearing at the RO, before the
undersigned Veterans Law Judge. At the hearing the Veteran
and his representative clarified that they did not wish to
pursue the CUE claim, but rather, continued the appeal for
higher ratings for PTSD both prior to and effective from
January 2, 2004.
The Board notes that the Veteran's representative has changed
during the course of this appeal. Effective June 2005, the
Veteran appointed Veterans of Foreign Wars as his
representative. He subsequently revoked that power of
attorney in May 2006, and appointed a private attorney, Polly
Murphy, as his representative. In February 2009, he revoked
the power of attorney with Polly Murphy, and appointed
Disabled American Veterans as his representative in this
matter.
The Board refers for RO consideration the issue of
entitlement to a total rating based on individual
unemployability due to service-connected disability (TDIU
rating) as reasonably raised by the record, including the
Veteran's statements and testimony, and the representative's
statements in this matter. See Roberson v. Principi, 251
F.3d 1378 (Fed. Cir. 2001) (TDIU raised where veteran
requests higher rating and submits evidence of
unemployability).
FINDINGS OF FACT
1. Prior to January 2, 2004, the most recent competent
evidence of record regarding the severity of the Veteran's
PTSD was a VA examination dated in March 1989, which showed
that his PTSD was manifested by no more than mild
occupational and social impairment due to mild or transient
symptoms which decrease work efficiency and ability to
perform occupational tasks only during periods of significant
stress.
2. Effective from January 2, 2004, the Veteran's PTSD was
manifested by no more than moderate occupational and social
impairment with reduced reliability and productivity due to
such symptoms as: panic and anxiety attacks; disturbances of
motivation and mood; difficulty in establishing and
maintaining effective work and social relationships; anxiety;
sleep problems; flashbacks, nightmares, irritability; and
hypervigilance
CONCLUSIONS OF LAW
1. The schedular criteria for a rating in excess of 10
percent for PTSD, prior to January 2, 2004, have not been
met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7,
4.130, Diagnostic Code 9411 (2009).
2. The schedular criteria for a rating in excess of 50
percent for PTSD, effective from January 2, 2004, have not
been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7,
4.130, Diagnostic Code 9411 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board has thoroughly reviewed all the evidence in the
Veteran's claims folder. Although the Board has an
obligation to provide reasons and bases supporting this
decision, there is no need to discuss, in detail, the
extensive evidence submitted by the Veteran or on his behalf.
See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)
(the Board must review the entire record, but does not have
to discuss each piece of evidence). The analysis below
focuses on the most salient and relevant evidence and on what
this evidence shows, or fails to show, on the claim. The
Veteran must not assume that the Board has overlooked pieces
of evidence that are not explicitly discussed herein. See
Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law
requires only that the Board address its reasons for
rejecting evidence favorable to the veteran).
I. Duty to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) enhanced
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits, as codified in pertinent part at 38
U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102,
3.159, 3.326(a).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative of any information, and any
medical or lay evidence, that is necessary to substantiate
the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper
notice from VA must inform the claimant of any information
and evidence not of record (1) that is necessary to
substantiate the claim; (2) that VA will seek to provide; and
(3) that the claimant is expected to provide. 38 C.F.R. §
3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30,
2008). This notice must be provided prior to an initial
decision on a claim by the RO. Mayfield v. Nicholson, 444
F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet.
App. 112 (2004).
The VCAA notice requirements apply to all five elements of a
service connection claim: (1) veteran status; (2) existence
of disability; (3) connection between service and the
disability; (4) degree of disability; and (5) effective date
of benefits where a claim is granted. Dingess v. Nicholson,
19 Vet. App. 473, 484 (2006).
If complete notice is not provided until after the initial
adjudication, such a timing error can be cured by subsequent
legally adequate VCAA notice, followed by readjudication of
the claim, as in a Statement of the Case (SOC) or
Supplemental SOC (SSOC). Moreover, where there is an uncured
timing defect in the notice, subsequent action by the RO
which provides the claimant a meaningful opportunity to
participate in the processing of the claim can prevent any
such defect from being prejudicial. Mayfield v. Nicholson,
499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v.
Nicholson, 20 Vet. App. 370, 376 (2006).
The United States Court of Appeals for the Federal Circuit
(Federal Circuit) previously held that any error in VCAA
notice should be presumed prejudicial, and that VA must bear
the burden of proving that such an error did not cause harm.
Sanders v. Nicholson, 487 F.3d 881 (2007). However, the
United States Supreme Court (Supreme Court) has recently
reversed that decision, finding it unlawful in light of 38
U.S.C.A. § 7261(b)(2), which provides that, in conducting
review of a decision of the Board, a court shall take due
account of the rule of prejudicial error. The Supreme Court
in essence held that - except for cases in which VA has
failed to meet the first requirement of 38 C.F.R. § 3.159(b)
by not informing the claimant of the information and evidence
necessary to substantiate the claim - the burden of proving
harmful error must rest with the party raising the issue, the
Federal Circuit's presumption of prejudicial error imposed an
unreasonable evidentiary burden upon VA and encouraged abuse
of the judicial process, and determinations on the issue of
harmless error should be made on a case-by-case basis.
Shinseki v. Sanders, 129 S. Ct. 1696 (2009).
In a claim for increase, the VCAA requirement is for generic
notice, that is, the type of evidence needed to substantiate
the claim, namely, evidence demonstrating a worsening or
increase in severity of the disability and the effect that
worsening has on employment, as well as general notice
regarding how disability ratings and effective dates are
assigned. Vazquez-Flores v. Shinseki, No. 08-7150, 2009 WL
2835434 (Fed. Cir. Sept. 4, 2009).
In this case, the VCAA duty to notify was satisfied by way of
letters sent to the Veteran in June 2005, July 2006, and June
2007, that fully addressed the notice elements. These
letters informed the Veteran of what evidence was required to
substantiate the claim and of his and VA's respective duties
for obtaining evidence. The Board also notes that the RO
sent the Veteran letters in July 2006 and June 2007 informing
him of how disability ratings and effective dates are
assigned. See Dingess v. Nicholson, supra. Moreover, he has
not demonstrated any error in VCAA notice, and therefore the
presumption of prejudicial error as to such notice does not
arise in this case. See Sanders v. Nicholson, supra. Thus,
the Board concludes that all required notice has been given
to the Veteran.
The Board also finds VA has satisfied its duty to assist the
Veteran in the development of the claim. The RO has obtained
the Veteran's VA treatment records dated through August 2009.
The Veteran underwent VA examinations in June 2005 and March
2006, and the Board finds that these VA examinations are
adequate. Each examination included a review of the claims
folder and a history obtained from the Veteran. Examination
findings were reported, along with diagnoses/opinions, which
were supported in the record. The examination reports are
adequate for rating purposes. See Barr v. Nicholson, 21 Vet.
App. 303, 310-11 (2007). In addition, it appears that all
obtainable evidence identified by the Veteran relative to his
claim has been obtained and associated with the claims file,
and that neither he nor his representative has identified any
other pertinent evidence, not already of record, which would
need to be obtained for a fair disposition of this appeal.
It is therefore the Board's conclusion that no further notice
or assistance to the Veteran is required to fulfill VA's duty
to assist him in the development of the claim. Smith v.
Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed.
Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001);
see also Quartuccio v. Principi, supra.
Accordingly, the Board finds that VA has satisfied its duty
to assist the Veteran in apprising him as to the evidence
needed, and in obtaining evidence pertinent to his claim
under the VCAA. Therefore, no useful purpose would be served
in remanding this matter for yet more development. Such a
remand would result in unnecessarily imposing additional
burdens on VA, with no additional benefit flowing to the
Veteran. The United States Court of Appeals for Veterans
Claims (Court) has held that such remands are to be avoided.
Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
II. Factual Background
By March 1987 rating decision, the RO granted service
connection for PTSD and assigned a 10 percent rating,
effective from October 6, 1986.
On VA examination in March 1989, the Veteran complained of
sleep disturbance, nightmares, hypervigilance, exaggerated
startle response, low mood, withdrawal, disinterest in
activities, poor self care, and irritability. He was
divorced, but was still having contested issues with his ex-
wife. He had moved out of their home and lived with his
brother, and was severely depressed recently. Though he had
a very unstable job history, he recently had his own
freelance carpentry business and was able to find as much
work as he needed by word of mouth. When not working, he was
interested in diving, which he had become involved with in
the past two years. He had more of a social life than he did
a few years ago, and had become very active in the Vietnam
veteran affairs. He was acting president of San Fernando
Valley Vietnam Veterans, which involved a great deal of time
with paperwork, telephone calls, interventions with veterans,
and attending social functions. He was motivated when other
people were needy or depressed, and was often called out to
talk to people who were suicidal. He had two daughters with
whom he had a good relationship. On mental status
examination he was oriented and cooperative. He had some
range of affect and his overall mood was mildly to moderately
depressed. He had no suicidal ideation. The diagnoses were
PTSD and dysthymic disorder.
By rating decision dated in May 1989, the RO denied a rating
in excess of 10 percent for PTSD.
By letter dated in October 1993, the RO advised the Veteran
that his benefit payments had been suspended because his
benefit checks were returned as undeliverable.
Received from the Veteran on January 2, 2004, was his claim
for an increased rating for PTSD. He reported that his
benefits had been stopped because he left his residence and
wandered around for years.
By May 2004 rating decision, the RO assigned a 0 percent
rating for PTSD, effective from June 1, 1993, noting that the
Veteran had not reported for the scheduled VA examination or
responded to the VCAA letter sent to him.
Received from the Veteran in April 2005 was a statement (VA
Form 21-4138) in which he reported he was filing for an
increase for his service-connected PTSD. He submitted a
personal statement in which he reported he had a hard time
concentrating, staying in one place, and keeping a job. He
reported he had recently reappeared after a 14 year absence
from family and former friends. He reported having no
friends, was frequently depressed, had frequent thoughts of
suicide, was always on alert and watching for ambushes, and
was confrontational. He claimed his symptoms had come back
full force and worse, and that he could not take the stress
and vanished for 14 years. He reported he was becoming out
of control with family and acquaintances, claiming he did not
have friends. His nightmares had increased to the point
where he woke up sweating. He reported he was involved with
a group for combat veterans and was unable to talk to anyone
else. He daydreamed about taking people out and hurting
them. He claimed he was withdrawing from people and society.
In a statement received in April 2005, the Veteran's sister,
K.L.S., reported he had become more reclusive, depressed, and
anxious, with irrational outbursts of anger, and an inability
to focus and follow through on projects. She lived in close
proximity to the Veteran, and saw his anxiety, anger, and
hypervigilance, and felt that he was in crisis. She reported
he had "freaked out" several times, and exhibited all the
symptoms he had before he vanished for 14 years.
In an April 2005 statement, the Veteran's wife, J.L.,
reported she had been together with the Veteran for 15 years
and he had not held a job for longer than 4 months. She
reported he was always on alert and was extremely sensitive
to any suggestion that might disagree with him. She claimed
he did not get close to anyone, and attended a Vietnam
veterans group, but had not formed any friendships. She
reported he was on an antidepressant, but was still in a
constant state of depression and anxiety, and almost never
can complete anything he starts.
VA treatment records showed that in March 2004, the Veteran
complained of mood changes, insomnia, sadness, irritability,
depression, flashbacks, nightmares, and loss of interest. In
April 2004, he reported he stopped taking Prozac because of
abdominal cramping and had no help for depression symptoms
for 3 weeks. The assessment was that his depression was not
optimally controlled.
VA treatment records showed that in January 2005 the Veteran
was seen in the mental health clinic where he reported things
had gotten progressively worse over the past three months,
and he did not care anymore and took things personally. He
reported a depressed mood, anhedonia, insomnia, poor
concentration, decreased energy, no libido, and past suicidal
ideation and intent. He had flashbacks of Vietnam, and felt
rage and had thoughts of hurting someone, but denied
homicidal ideation. He had been with his female partner for
20 years, but never married, due to her having been married
to a powerful man in the past, and they had been in hiding
for the past 16 years. He indicated that this man had stolen
his and his partner's identities. The examiner noted he
exhibited paranoia in discussing this. He denied
hallucinations. He reported smelling things sometimes that
others did not smell (i.e., blood). On examination he was
found to be oriented and agitated, with adequate eye contact,
and his speech was normal in rate with a raised tone at
times. His thought processes were paranoid, his affect was
labile, and his mood was angry and irritated. He had
suicidal ideation with plan, but no intent. The assessment
was PTSD per history; MDD, recurrent, moderate; and r/o
delusional disorder. The same day, he was seen for a
psychiatric medication evaluation, and he reported having
physical problems and financial stress. He had met his
daughters for the first time since 1990, which he reported
went well and that it was nice to have them back in his life.
He felt stable on his current medication, his mood and affect
were euthymic, and he had no suicidal or homicidal ideations.
On VA examination in June 2005, the Veteran reported having
constant symptoms of depression, anxiety, anger, no trust or
faith, and no hope of getting well. His jobs after service
included being a handyman from 1971 to 1991, but he claimed
his relationship with his supervisor and co-workers was poor.
The examiner noted that since the Veteran developed his
mental condition, he had been unable to get along with other
people, had sleep troubles, and withdrew from crowds. He had
not worked since 1991, claiming he was mentally incapable of
working and could not get along with others. He started
using alcohol in 1982 to sleep and relax, and continued with
this habit. On mental status examination , he was found to
be a reliable historian, oriented, and with appropriate
appearance and hygiene. His behavior was not appropriate,
his affect and mood were abnormal due to anxiety, and his
communication was abnormal due to making no eye contact. His
speech was within normal limits. Panic attacks were present
and occurred as often as 4 times per month, with each episode
lasting 5 minutes. His delusional history was present
constantly, including watching the house perimeter in the
middle of the night, but on examination no delusions were
observed. History of hallucinations was present
intermittently, including seeing shadows in the yard, but no
hallucinations were observed on examination. Obsessional
rituals included needing to check and double check doors and
locks in the middle of the night. His thought processes were
not appropriate, and with paranoia. His judgment was not
impaired, his abstract thinking was normal, and his memory
was within normal limits. Suicidal and homicidal ideation
were absent. The diagnoses included PTSD. A GAF score of
65-70 was assigned. The examiner noted that the Veteran did
not have difficulty performing his activities of daily
living, and had no difficulty understanding commands. He
appeared to pose no threat of persistent danger or injury to
self or others. He was unable to establish and maintain work
and social relationships because he avoided society and
crowds and had distrust and fear.
By July 2005 rating decision, the RO found that clear and
unmistakable error (CUE) had been committed in failing to
restore the 10 percent rating previously established for the
service-connected PTSD, effective June 1, 1993. The RO also
increased the evaluation of PTSD, which had been corrected to
10 percent, to 50 percent, effective January 2, 2004.
VA treatment records showed that in an August 2005 psychiatry
telephone note, the Veteran reported his anxiety was very
high and he began taking more Zoloft which was helpful. He
had no suicidal or homicidal ideation. In October 2005, he
reported the Zoloft was not working. He constantly felt
depressed and had anxiety attacks. He was using alcohol to
control his anxiety for the last two years. In January 2006,
he reported feeling depressed, that medication helped with
anxiety, and that his panic attacks were better. He had
intrusive thoughts about Vietnam. He was not suicidal or
violent. On objective examination he had average grooming
and was in no acute distress. His speech was a little
pressured, his eye contact was good, and his mood was anxious
and sad. His affect was non-restricted, non-labile, and
appropriate. His thought processes were logical and goal-
directed. His memory was intact and his insight and judgment
were good.
In February 2006, the RO sought another VA examination for
the Veteran in order to reconcile a discrepancy in the June
2005 VA examination. The RO noted that in June 2005, the
examiner indicated that the Veteran was unable to establish
and maintain effective work and social relationships because
he avoided society and crowds and had distrust and fear. The
RO also noted that although the VA examiner indicated the
Veteran's GAF was 65-70, the examiner was also indicating
that he was unemployable secondary to his PTSD symptoms. The
RO requested that the discrepancy be reconciled, noting that
a GAF score of 65-70 indicated mild PTSD symptomatology.
On VA examination in March 2006, the Veteran reported a
typical array of symptoms of PTSD, including poor sleep,
nightmares about Vietnam experiences, intrusive thoughts on
an almost daily basis, and he was irritable and short-
tempered. He reported that if he heard a sharp or loud
sound, he sometimes hit the ground, and that if he went to a
restaurant he had to sit next to the wall. He continued to
have anxiety and panic attacks one time a week. He was
generally depressed with low energy and motivation, sadness,
near tearfulness, and some suicidal ideation. His two mental
health medications helped somewhat, but he wished to have
more control over his mental health symptoms. He reported
that his first marriage ended due to his irritability and
short temper. He had a current 15 year relationship with
another woman and would like to get married. He stayed at
home alone a lot, and did not get out much with his lady
friend. He reported they occasionally went to a restaurant,
but do not go to movies or any other social events. He had
not gone to church with her in a couple of years. He had one
other friend who was an older gentleman and a cabinetmaker
and carpenter. The Veteran reported he had done this kind of
work, and helped his older friend with his business, and was
thinking of possibly joining this man in work. He reported
he had been too sick to work for the last year, but had
worked a little as a handyman. He reported he had trouble
relating to people who worked for him, and was not able to
maintain effective work relationships. He reported that,
combined with feeling sick and weak from viral infections and
shingles made his work activities during the last year
"meager". His best job was 9 years ago when he did
woodwork and carpentry for 9 months. He had done a variety
of other jobs, but reportedly always had limited
effectiveness on the job because of his difficulty relating
to others. On examination, he was found to be appropriately
dressed. He was off on the date by a couple of days, but was
otherwise found to be well oriented. He had reasonably good
short term memory, his mood was slightly down, and he was
slightly negative in his outlook. There was no evidence of a
thought disorder, and he had no delusions, but had occasional
flashbacks. He performed cognitive functioning tasks well,
and demonstrated an acceptable level of verbal abstracting
skills. The examiner noted no significant impairment of
thought process or communication that would impact his social
or work functioning. The examiner indicated there was a
certain sense of negativity and opposition that the Veteran
demonstrated in performing these tasks that could have a
negative impact on his relating with others. The diagnoses
included PTSD with associated depression and anxiety, a GAF
score of 54 was assigned, and it was noted that the Veteran
had limited capacity to engage in work activities.
In the discussion portion of the March 2006 VA examination
report, the examiner noted that the Veteran continued to have
PTSD without signs of remission and without significant
change since his last examination. He continued to
demonstrate a number of standard PTSD symptoms, including
nightmares, intrusive thoughts of hypervigilance,
irritability, etc. The examiner noted that the Veteran had a
tendency to be a loner, and preferred it that way as he did
not get along very well with people. The examiner noted that
over the years, the Veteran's ability to work and earn a
living had been considerably compromised by his difficulty in
relating to people. The examiner opined that currently, the
Veteran continue to experience considerable difficulty in his
capacity to work due to PTSD. The examiner commented that
the prior examination that assigned a GAF score of 65 to 70
was a bit elevated in relation to the reduced capacity the
Veteran had then and now, noting that the present score in
the mid-50s seemed more appropriate. The examiner also noted
that the Veteran was not experiencing a severe level of work
dysfunction, and was looking at the possibility of working
with another individual, and that such a work situation could
prove effective for the Veteran. The examiner indicated that
standard work situations involving communicating and
interacting with a significant number of other people would
be severely disruptive for the Veteran, and suggested another
evaluation of the Veteran's work status in a year or so.
VA treatment records showed that in June 2006, he reported
increased anxiety, depressed mood, and irritability, and he
reported he was still drinking and using marijuana. On
mental status examination he was alert and oriented and
cooperative. He had average grooming, poor eye contact, and
normal speech. He was in good touch with reality, had an
irritable mood with labile affect, and had a goal-directed
linear thought process. He denied suicidal or homicidal
ideation, had limited insight and judgment, and had grossly
intact memory.
Treatment records from the Vet Center showed that the Veteran
attended individual and group counseling from October 2004
through March 2006. In April 2005, it was noted that he had
a fairly good attitude in group therapy and contributed
nicely to the discussions when he attended. In August 2005
it was noted that he seemed to take the group therapy
seriously, but had trouble with specifics due to severe
memory impairment with regard to events and details. In
October 2005, he reported having trouble with intrusive
thoughts more than he did with nightmares, but had not been
successful yet in dealing with them. In November 2005, it
was noted that the Veteran seemed to have some insight into
his stress level and knew what to do to reduce it.
VA treatment records showed that in January 2007, the Veteran
reported he was in a lot of stress, including financial,
family, and health. He mentioned some nightmares, but not as
bad as before, and that his sleep was disturbed. In August
2007, he was seen for substance abuse treatment, and reported
that mental health would not see him any longer. He reported
problems with depression, anxiety, and PTSD, and that he felt
suicidal two to three times in his life, and most recently
three weeks prior, but did not have a plan to hurt himself.
He reported he was in communication with his father and older
sister, and had a good relationship with his daughters. He
reported his support system was adequate to meet his needs,
and included his wife and her son. He reported having no
friends. On examination he was oriented and his mood was
stable and good. The Axis I diagnoses included alcohol and
cannabis abuse, and continuous anxiety. In March 2008, he
was seen for evaluation of his medications for depression and
PTSD. He reported he felt like he was not functioning, and
he had no energy, felt bad about things, and had bad
concentration, poor appetite, and weight loss. He reported
fleeting thoughts of suicide, and reported two episodes of
extreme depression since August 2007 where suicide entered
his mind. On examination, his mood was sad and he had no
energy. His affect was mood-congruent and his short term
memory was impaired and he worried a lot. His concentration
was fair, and speech was excitable. The assessment was
chronic PTSD, and a GAF score of 55-60 was assigned.
VA treatment records further showed that in March 2009, the
Veteran had a positive screen for depression, and his score
was suggestive of moderate depression. A suicide risk
evaluation was completed, and the clinical conclusion was
that he was at no risk for suicide. His depression and PTSD
were found to be somewhat controlled, and his active
medications list included no medications for his PTSD,
depression, or anxiety. In August 2009, his PTSD screening
test was negative. He responded "no" to having nightmares;
trying hard not to think about it; being constantly on guard,
watchful, or easily startled; and feeling numb or detached
from others, activities, or your surroundings. He also
responded "no" to feeling hopeless about the present or
future, having thoughts about taking his life, and whether he
had a suicide attempt. The physician concluded that there
was no mental health condition requiring further
intervention, and that he had no active symptoms.
In September 2009, the Veteran testified that he had not had
substantial, gainful employment since 1991, and claimed that
his PTSD was primarily the cause of his unemployability.
III. Analysis
Disability evaluations are determined by comparing a
veteran's present symptomatology with criteria set forth in
VA's Schedule for Rating Disabilities. The percentage
ratings represent, as far as can practicably be determined,
the average impairment in earning capacity resulting from
such diseases and injuries and their residual conditions in
civil occupations. Individual disabilities are assigned
separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. §
4.1, Part 4.
When entitlement to compensation has already been established
and an increase in the disability rating is at issue, the
present level of disability is of primary concern. Francisco
v. Brown, 7 Vet. App. 55 (1994). However, staged ratings may
be assigned where the symptomatology warrants different
ratings for distinct time periods. Hart v. Mansfield, 21
Vet. App. 505 (2007).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
for that rating. Otherwise, the lower rating will be
assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding
the degree of disability will be resolved in favor of the
veteran. 38 C.F.R. § 4.3.
When evaluating a mental disorder, the rating agency shall
consider the frequency, severity, and duration of psychiatric
symptoms, the length of remissions, and the veteran's
capacity for adjustment during periods of remission. The
rating agency shall assign an evaluation based on all the
evidence of record that bears on occupational and social
impairment, rather than solely on the examiner's assessment
of the level of disability at the moment of the examination.
When evaluating the level of disability from a mental
disorder, the rating agency will consider the extent of
social impairment, but shall not assign an evaluation solely
on the basis of social impairment. 38 C.F.R. § 4.126.
The Board notes that with regard to the use of the phrase
"such as" in 38 C.F.R. § 4.130 (General Rating Formula for
Mental Disorders), ratings are assigned according to the
manifestations of particular symptoms. However, the use of
the phrase "such as" in 38 C.F.R. § 4.130 demonstrates that
the symptoms after that phrase are not intended to constitute
an exhaustive list, but rather are to serve only as examples
of the type and degree of the symptoms, or their effects,
that would justify a particular rating. Mauerhan v.
Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence
considered in determining the level of impairment under §
4.130 is not restricted to the symptoms provided in the
Diagnostic Code. Instead, VA must consider all symptoms of a
claimant's condition that affect the level of occupational
and social impairment, including, if applicable, those
identified in the Diagnostic and Statistical Manual of Mental
Disorders, Fourth Edition (DSM-IV).
The Veteran's PTSD has been rated under 38 C.F.R. § 4.130,
Diagnostic Code (DC) 9411. Pursuant to DC 9411, a 10 percent
rating is to be assigned for PTSD when there is occupational
and social impairment due to mild or transient symptoms which
decrease work efficiency and ability to perform occupational
tasks only during periods of significant stress, or; symptoms
controlled by continuous medication. A 30 percent rating is
assigned for occupational and social impairment with
occasional decrease in work efficiency and intermittent
periods of inability to perform occupational tasks (although
generally functioning satisfactorily, with routine behavior,
self-care, and conversation normal), due to such symptoms as:
depressed mood, anxiety, suspiciousness, panic attacks
(weekly or less often), chronic sleep impairment, mild memory
loss (such as forgetting names, directions, recent events).
38 C.F.R. § 4.130, DC 9411.
A 50 percent rating is indicated where there is occupational
and social impairment with reduced reliability and
productivity due to such symptoms as: flattened affect;
circumstantial, circumlocutory, or stereotyped speech; panic
attacks more than once a week; difficulty in understanding
complex commands; impairment of short-and long-term memory;
impaired judgment; impaired abstract thinking; disturbance of
motivation and mood; and difficulty in establishing and
maintaining effective work and social relationships. Id.
A 70 percent rating is warranted for PTSD when there is
occupational and social impairment with deficiencies in most
areas, such as work, school, family relations, judgment,
thinking, mood, due to such symptoms as: suicidal ideation;
obsessional rituals which interfere with routine activities;
speech intermittently illogical, obscure, or irrelevant;
near-continuous panic or depression affecting the ability to
function independently, appropriately and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or a work-like
setting); and the inability to establish and maintain
effective relationships. Id.
1. Rating in excess of 10 percent for PTSD, prior to January
2, 2004
At the outset, the Board notes the RO had initially granted
service connection for PTSD and assigned a 10 percent rating,
effective from October 6, 1986. This disability rating was
confirmed by rating decision dated in May 1989. The record
reflects that the Veteran essentially "disappeared", and by
letter dated in October 1993, the RO advised the Veteran that
his benefit payments had been suspended because his benefit
checks were returned as undeliverable.
In January 2004, the Veteran resurfaced with VA and filed a
claim for an increased rating for PTSD, noting that his
benefits had been stopped because he left his residence and
wandered around for years. Although the RO initially reduced
the disability rating for PTSD to 0 percent, by July 2005
rating decision the RO restored the 10 percent disability
rating, effective June 1, 1993 (after finding that CUE had
been committed in failing to restore the 10 percent rating
previously established). The RO also increased the
evaluation of PTSD, to 50 percent, effective from January 2,
2004. The Board notes that the 10 percent rating for PTSD,
effective prior to January 2, 2004, was essentially based on
the most recent competent medical evidence - which was the
March 1989 VA examination. Between the March 1989 VA
examination and the January 2004 statement from the Veteran,
there is no other competent evidence of record addressing the
severity of the Veteran's PTSD.
In considering the criteria for an increased, 30 percent
rating, the Board notes that the VA examination in March 1989
showed at most mild occupational and social impairment. The
Veteran at that time complained of sleep disturbance,
nightmares, hypervigilance, exaggerated startle response, low
mood, withdrawal, disinterest in activities, poor self care,
and irritability. He recently had his own freelance
carpentry business and was able to find as much work as he
needed by word of mouth, and when not working, he was
interested in diving. He was acting president of San
Fernando Valley Vietnam Veterans, which involved a great deal
of time with paperwork, telephone calls, interventions with
veterans, and attending social functions. He was motivated
when other people were needy or depressed, and was often
called out to talk to people who were suicidal, and had a
good relationship with his two daughters. His overall mood
was mildly to moderately depressed. There was no report of
or showing of suspiciousness, panic attacks, or mild memory
loss (such as forgetting names, directions, recent events).
Thus, a review of the VA examination dated in March 1989,
showed that the Veteran's PTSD was manifested by no more than
mild occupational and social impairment, due to mild or
transient symptoms which decrease work efficiency and ability
to perform occupational tasks only during periods of
significant stress. The Board therefore concludes that after
reviewing the pertinent evidence of record prior to January
2, 2004, the criteria for a rating in excess of 10 percent
for PTSD were not approximated at any point prior to January
2, 2004. 38 C.F.R. § 4.7; Hart v. Mansfield, supra.
Accordingly, as the preponderance of the evidence is against
the claim for a rating in excess of 10 percent for PTSD,
prior to January 2, 2004, the benefit-of-the-doubt doctrine
does not apply, and the claim must be denied. 38 U.S.C.A. §
5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App.
49, 53 (1990).
2. Rating in excess of 50 percent for PTSD, effective from
January 2, 2004
The record reflects that by July 2005 rating decision, the RO
assigned a 50 percent rating for the service-connected PTSD,
effective from January 2, 2004, essentially based upon the
evidence of record at the time which included a VA
examination in June 2005, VA treatment records dated from
January 2004, and lay statements from the Veteran, his
sister, and his wife. The Board notes that review of this
evidence, plus additional competent evidence added to record
after January 2, 2004, does not show that the criteria for an
increased, 70 percent, rating have been met at any point or
approximated. 38 C.F.R. § 4.7. Rather, the Board finds it
significant that the preponderance of the medical evidence
dated from January 2004 through 2009, including VA
examination reports, Vet Center records, and VA treatment
records, show that the Veteran's PTSD has resulted in
primarily the same ongoing symptoms - depression, anxiety,
sleep problems, flashbacks, nightmares, panic and anxiety
attacks, irritability, hypervigilance, marital conflict, and
struggles maintaining employment. Moreover, on the most
recent VA treatment records, the Veteran was found to have
moderate depression, and his depression and PTSD were found
to be somewhat controlled, with no notation of any active
medications for his PTSD or depression. Additionally, in
August 2009 a PTSD screening test was negative, and the
psychiatrist concluded that there was no mental health
condition requiring further intervention and there were no
active symptoms. Thus, the Board finds that the Veteran's
ongoing symptoms attributed to his PTSD are at most
consistent with the criteria for a 50 percent rating under
Diagnostic Code 9411.
With regard to the criteria necessary for a 70 percent rating
to be assigned, the preponderance of the competent evidence
dated from January 2, 2004, shows that the Veteran reported
having occasional suicidal ideation, but for the most part
denied suicidal or homicidal ideation. He did report
exhibiting some obsessional rituals, including watching the
house perimeter at night, and checking the doors and locks in
the middle of the night, which clearly interfered with his
sleeping. He also reported nightmares and flashbacks
involving his Vietnam experiences. On all examinations he
was found to be oriented, with adequate hygiene, and his
speech was not found, at any time, to be illogical, obscure,
or irrelevant. While he experienced ongoing and chronic
depression and anxiety or panic attacks, the preponderance of
the evidence does not show that he had near-continuous panic
or depression that affected his ability to function. In that
regard, the Board notes that the Veteran was able to tend to
his basic needs and take care of himself at home, was found
to be able to tend to his activities of daily living,
attended therapy, did at least some work as a handyman, and
was considering joining a friend in his carpentry business.
In June 2005, he reported having panic attacks as often as
four times a month, with each episode lasting 5 minutes, but
in January 2006 he reported his medication helped with
anxiety and his panic attacks were better. In March 2006, he
reported having anxiety and panic attacks one time a week.
Subsequent VA treatment records dated through 2007, showed
that he continued to complain of anxiety. Thus, the Board
concludes that these findings do not approximate near-
continuous panic or depression affecting the ability to
function independently, appropriately and effectively, as set
out in the criteria for a 70 percent rating. With regard to
impaired impulse control, the record reflects that the
Veteran had problems with irritability and with thoughts of
wanting to harm others, but there is no indication he had
impulse control problems or ever acted on his impulses or had
unprovoked irritability with periods of violence.
With regard to his ability to establish and maintain
effective relationships, the Board notes that the Veteran had
been with his current wife for close to 20 years, and had a
good relationship with her and her son, and at one point,
called them an adequate support system. He also reported
having a good relationship with his daughters, and having a
male friend whom he considered joining in his business.
Thus, while the Veteran may have problems with establishing
and maintaining effective relationships, the record reflects
he has been able to establish maintain a good relationship
with several people.
With regard to whether the Veteran had difficulty in adapting
to stressful circumstances (including work or a work-like
setting), the Board acknowledges the Veteran's contentions
that his PTSD inhibited his ability to work, as well as the
medical examiner's statements in June 2005 that he was
"unable" to maintain work relationships. However, the
Board notes that the same examiner in 2005 assigned a GAF
score that was not consistent with his clinical findings and
opinions, which prompted the RO to obtain another VA
examination to clarify this discrepancy. Accordingly, in
March 2006, the examiner noted that the Veteran continued to
experience considerable difficulty in his capacity to work
due to PTSD, but was not experiencing a severe level of work
dysfunction, and was looking at the possibility of working
with a friend. The examiner in 2005 also noted that the
Veteran had a limited capacity to engage in work activities,
and that standard work situations would be severely
disruptive for the Veteran, and suggested another evaluation
for the Veteran's work status. While it appears that VA did
not conduct another such evaluation, the Board finds that
such further evaluation is not necessary, and notes that the
most recent competent medical evidence shows that the
Veteran's PTSD and depression were somewhat controlled, and
in August 1999 his PTSD screening was negative and he had no
active symptoms.
With regard to GAF scores, the Board notes on the VA
examination in 2005, a GAF score of 65-70 was assigned; on VA
examination in 2006 a GAF score of 54 was assigned; and in
August 2007 a GAF score of 55-60 was assigned. GAF is a
scale reflecting the psychological, social, and occupational
functioning on a hypothetical continuum of mental health-
illness. Carpenter v. Brown, 8 Vet. App. 240 (1995).
According to the American Psychiatric Association's DSM-IV,
GAF scores ranging from 51 to 60 reflect more moderate
symptoms (e.g., flat affect and circumstantial speech,
occasional panic attacks) or moderate difficulty in social,
occupational, or school functioning (e.g., few friends,
conflicts with peers or co-workers). A GAF score of 61 to 70
indicates some mild symptoms or some difficulty in social,
occupational, or school functioning, but generally functions
pretty well with some meaningful interpersonal relationships.
The Board notes that while the examiner's classification of
the level of psychiatric impairment, by words or by a GAF
score, is to be considered, it is not determinative of the
percentage rating to be assigned as the rating depends on
evaluation of all the evidence. 38 C.F.R. § 4.126;
VAOPGCPREC 10-95. The Board acknowledges that the GAF scores
assigned by the VA examiner in June 2005 (65-70) were
considered to be high in relation to the clinical findings
and opinions made by the examiner. The Board agrees with
this assessment. However, subsequent GAF scores ranged from
54 to 60, which reflect moderate symptoms and moderate
difficulty with social and occupational functioning, and are
reflective of the Veteran's symptoms and impairment resulting
from his PTSD, as shown by the competent evidence of record.
Nonetheless, the Board also notes that the GAF score is but
part of the evidence to be considered, and in and of itself
is not determinative of the percentage to be assigned.
Based upon the foregoing, the Board concludes that the
preponderance of the evidence is against a finding that a 70
percent rating is warranted for the PTSD, effective from
January 2, 2004. In the instant case, the Board's inquiry is
limited to whether the preponderance of evidence of record,
or at least a 50-50 balance of the evidence, supports the
grant of a 70 percent rating from January 2, 2004, and after
carefully considering the pertinent evidence of record the
Board finds an increased rating is not warranted. As noted
above, the Board is aware that the symptoms listed under the
70 percent rating are examples of the type and degree of
symptoms for that evaluation, and that the Veteran need not
demonstrate those exact symptoms to warrant a 70 percent
evaluation. Mauerhan v. Principi, supra. However, the
record does not show that the Veteran manifested symptoms due
to PTSD equal or more nearly approximating the criteria for a
70 percent evaluation. While he clearly had fluctuating PTSD
symptoms which affected his efficiency, ability to perform
occupational tasks, and social abilities, he was never shown
to have PTSD symptomatology of such severity so as to warrant
a 70 percent rating at any point from January 2, 2004. Hart,
supra.
Accordingly, as the preponderance of the evidence is against
the claim for a rating in excess of 50 percent for PTSD, from
January 2, 2004, the benefit-of-the-doubt doctrine does not
apply, and the claim must be denied. 38 U.S.C.A. § 5107(b);
38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.
3. Extraschedular Consideration under 38 C.F.R. § 3.321(b)(1)
The Board also notes that the Veteran's PTSD did not warrant
referral for extra-schedular consideration at any point
either prior to or effective from January 2, 2004. In
exceptional cases where schedular disability ratings are
found to be inadequate, consideration of an extra-schedular
disability rating is made. 38 C.F.R. § 3.321(b)(1). There
is a three-step analysis for determining whether an extra-
schedular disability rating is appropriate. Thun v. Peake,
22 Vet. App. 111 (2008). First, there must be a comparison
between the level of severity and symptomatology of the
Veteran's service-connected disability and the established
criteria found in the rating schedule to determine whether
the Veteran's disability picture is adequately contemplated
by the rating schedule. Id. If not, the second step is to
determine whether the claimant's exceptional disability
picture exhibits other related factors identified in the
regulations as "governing norms." Id.; see also 38 C.F.R.
§ 3.321(b)(1) (governing norms include marked interference
with employment and frequent periods of hospitalization). If
the factors of step two are found to exist, the third step is
to refer the case to the Under Secretary for Benefits or the
Director of the Compensation and Pension Service for a
determination whether, to accord justice, the claimant's
disability picture requires the assignment of an extra-
schedular rating. Id.
In the present case, the record reflects that as of March
1989 the Veteran reported he had his own freelance carpentry
business and he was able to find as much work as he needed by
word of mouth. There is a large gap in the record from
approximately 1993 to 2004 when the Veteran had
"disappeared" and his disability benefits were suspended.
When the Veteran reappeared and re-engaged with VA in 2004,
he reported he had trouble keeping a job. He reported he
worked as a handyman from 1971 to 1991, but had not worked
since then. He also indicated that when he was a handyman
his relationship with his supervisor and co-workers was poor.
In March 2006, he reported he had been too sick to work the
prior year, but had worked a little as a handyman. He was
thinking of possibly joining a friend in his carpentry work.
In September 2009 he claimed that his PTSD primarily caused
his unemployability. In addition to the Veteran's
statements, a review of the competent medical evidence also
shows that the Veteran's PTSD has caused interference with
his employability. However, there has been no showing that
PTSD has caused marked interference with his ability to work,
nor has there been any indication that the schedular criteria
(Diagnostic Code 9411) are inadequate to compensate the
Veteran for any occupational impairment due to his PTSD.
Additionally, there is no indication the Veteran has been
frequently hospitalized due to his PTSD. Therefore, referral
for the assignment of an extraschedular disability rating is
not warranted.
(CONTINUED ON NEXT PAGE)
ORDER
A rating in excess of 10 percent for PTSD, prior to January
2, 2004, is denied.
A rating in excess of 50 percent for PTSD, effective from
January 2, 2004, is denied.
____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs